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Supreme Court transcript, Abramski v. US
Transcript of this morning's oral argument here. It's the case where an LEO who bought a gun for his uncle, and transferred it to him through a second FFL, was charged with making a straw man sale and with lying on the 4473 where it asks if you are the actual recipient of the firearm.
Initially, I was concerned because the Justices (apart from Scalaia) were pretty hard on Abramski's attorney. Then came the government's argument, and they were pretty hard on its attorney as well. Abramski's attorney then gave an excellent rebuttal, focusing on the positions the Justices had suggested. Rebuttals are too often neglected in appellate argument -- he certainly did not neglect his chance to score points!
Rather strange legal issue. The back of the 4473 says if you are going to make a gift of the gun to someone you should answer yes, you are actual recipient. The government theory here is that it wasn't a true gift... the uncle had sent him money for it, so he should have answered no. And if he'd bought it from himself and later decided to sell it to the uncle, he'd be okay to answer yes. I find it hard to reconcile all those positions, if the issue is how you answer that specific question: are you the actual recipient of the firearm? How can the answer to that question depend upon whether you meant to give it to someone as a gift or to give it to them after being paid for it?
UPDATE: If a relative asks me to buy a carton of milk for them, and I do so, wouldn't it make sense, at the point of purchase, to say I am the actual buyer and recipient of the milk? What the 4473 should say is something like "do you have any present intent to transfer this gun to someone else, other than as a gift?" or "do you have any present intent to transfer this gun to someone else, in exchange for money or something of value?" Then Abramski would have had to answer yes, or make a clearly false statement.
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Intent shouldn't matter. The statute does not specify how long you must own a firearm to be the actual recipient. He was the actual recipient. Then he sold it to his uncle. Why should intent matter, or even the fact that they planned to make these transfers? What if I tell my brother that I want a Glock, and I tell him the exact model, and I even send him the money in case he sees a good deal. He purchases it legally, and then some time after legally sells it to me. Was he not the initial actual recipient? What does "actual" mean? How long must you wait to become the actual recipient?
This is a poorly crafted, and in fact, unnecessary 'question,' since it is covered by other law.
I'm kind of curious why the lawyer for the guy accused didn't make a "no harm, no foul" argument, arguing that in fact because the firearm was transferred to the uncle through a licensed dealer with the form 4473 filled out and the background check done, that there was no intent to violate any law against straw purchases.
The arguments all seem to center around subsequently transferring a gun to a prohibited persons (like Al Capone), but that wasn't the case here.
Hell, seems to me that the *ONLY* reason the case came to the attention of the ATF is that the gun was subsequently transferred through the legal process. If the nephew just gave the uncle the gun, the government would have never found out about it, absent the gun ending up at a crime scene or something like that.
IMHO this case roams around how badly Congress can poorly write a compromise law and pass it then have enforcement...and then escape critique.
This clause could damn near mean anything depending where you're seated.
All these cases hinge around the fact that Congress has no police power in this area and 99% of the other areas that Congress passes laws to control. Congress was granted police powers in roughly 6 areas. These are explicit grants of power and the existence of these explicit grants prove that those persons who believe that implied police powers exist in the N&P clause are simply and inarguably WRONG.
The Framers found it necessary to include a separate power to punish counterfeiting AND this grant is in the same section of grants as all the other primary grants including the restrictive necessary and proper clause. Again those who believe the N&P clause is expansive simply are WRONG and cannot read or follow logic and reason. The enumerated grants prove my position and disprove the expansive position irrefutably.
I thought it was interesting that the ATF interpreted the law one way from 1968 to 1994, and then changed the interpretation to criminalize even such a fact pattern as this:
Adamski buys the gun where he is located. Completes 4473 and NICS check.
Adamski brings the gun to FFL in his relative's state. FFL transfers gun to relative. Relative completes 4473 and NICS check.
ATF's position is that this is a serious felony, the sort of crime they should pursue rather than actual drug-trafficking organizations and other organized crime.
Meanwhile, they're still walking guns to violent criminals.
They just had to change SACS in Seattle because the old guy was embezzling money and enabling CIs to violate many laws, including violent crimes. And the new guy announces -- he's going to crack down on FFL dealers using those same CIs, minus any that actually go to prison along with the old SAC (who's holding a 35-count indictment).
Adamski seems a bizarre case, but the whole area of law is bizarre. What comes out of American courtrooms is more or less a dice toss, entirely random except inasmuch as money and power provide some insulation.
Technically, Adamski did not transfer the gun to his uncle, he transfered the gun to a FFL in PA. The PA FFL then transfered the gun to another person(the uncle) The FFL's record book will show an acquisition and then a disposition.
Just Sayin!
I think the comment about the firearm being transferred to an FFL, not to the uncle, is maybe the most insightful one so far.
The issue of ownership or title seems to me to be almost irrelevant. The laws are geared to possession, not ownership. How can transfer of possession and control to an FFL be unlawful?
Perhaps under current law, Al Capone could legally hold title to a firearm. But he definitely could not legally take possession of it.
Bit late to the discussion, but it seems that the Justices got very side-tracked with what I view as immaterial issues. Now, IANAL, but it seems to me that the question is whether Abramski should have been charged at all, let alone convicted, but all the hypothetical "straw purchase" situations are distracting. I can understand the Justices needing to establish an understanding of the current statutory law in order to make a judgment, but still....
Does it matter, for the purposes of this case, that buying a firearm from a dealer and then selling it to a stranger or (suspected) prohibited person is questionable or illegal? I'm not sure it should; since Abramski transferred the gun to a FFL in PA, who ran a background check on his uncle before transferring the gun to him, it seems immaterial that transferring the gun to a felon (Al Capone? Really?) is illegal - the facts of the case prove that none involved are felons, so that prohibition seems immaterial.
I think (and again, IANAL) that the only thing the Feds have going for them are the timeline and the check's memo line, in that the uncle wrote a check covering the cost of the gun before Abramski bought it and wrote "Glock 19" on the memo line. If the check had been written afterward, off the record and with a blank memo line, the gun would unequivocally be a "gift" in the eyes of the law.
Just my $0.02, take it for what it's worth.
Wow that is a long read, can't wait to read the next one. The questions they were asking, made it seem like they are going to find in favor of Mr ABRAMSKI. I think Justice Sotomayor was the one who mentioned when there are multiple interpretations of statutes that precedent requires them to use the one favorable to Mr ABRAMSKI.